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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ewing v Cheape [1835] CA 13_515 (24 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0515.html Cite as: [1835] CA 13_515 |
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Page: 515↓
Subject_Process—Homologation—Suspension.—
Circumstances in which a bill of suspension of a charge for the expenses of a decree in absence, offered on caution or consignation, was refused, the suspender having homologated and acquiesced in it.
In a multiplepoinding raised by the trustees of the late Sir James Campbell, a claim was lodged by the Countess of Strathmore's trustees, and also by William Ewing, residing in Melville Street, Edinburgh, who founded on obligations for which the Countess was said to be liable. After considerable procedure in the multiplepoinding, and after it had been distinctly and repeatedly intimated to Ewing, by the trustees of the Countess, that they would agree to his claim being sustained to the extent of £650, on condition of his granting a discharge of his whole claims against the Countess, and of the diligence of inhibition, &c. raised by him thereon; an interlocutor was pronounced, with the full knowledge of Ewing, which “of consent preferred William Ewing primo loco, to the extent of £650, upon his granting to Lady Strathmore and her trustees a full discharge of all claims, &c.”
Ewing uplifted the money, but refused to execute the discharge, alleging that it was extrajudicially agreed between himself and Andrew Clason, W.S., the agent of the trustee, that he should have a farther sum of £55 allowed to him. This averment was explicitly denied by Clason, and an action was raised to compel Ewing to sign the discharge, and, in the event of his failure, or refusal, to declare that his ground of
_________________ Footnote _________________
Lord Advocate, February 1, 1822 (ante I. 314, or 264, new ed.); Lord Advocate, February 1, 1822 (ante, I. 317 or 267, new ed.); A. S. January 17, 1822; M'Lauchlan, December 15, 1821 (ante, I. 236 or 206, new ed.); Stoddart, January 22, 1822 (ante, I. 281, or 242, new ed.); Bell, January 26, 1822 (ante, I. 299, or 253, new ed.); M'Alister, February 21, 1822 (ante, I. 377, or 316, new ed.); Baillle, March 1, 1822 (ante, I. 410, or 345, new ed.); Lord Advocate, March 8, 1882 (ante, I. 431, or 385, new ed.); Lord Advocate, January 21, 1823(ante, II. 132, or 123, new ed.); D. of Atholl, June 28, 1823 (ante, II. 442, or 393, newed.); Jack, February 11, 1824 (ante, II. 691, or 632, new ed.); Gilfillan, May 18, 1824 (ante, III. 21); Campbell, July 10, 1824 (ante, III. 245); Henderson, December 10, 1824 (ante, III. 384); Murray, December 15, 1824 (ante, III. 401); M'Millan, December 10, 1825 (ante, IV. 297); M'Lachlan, December 16, 1826 (ante, V. 147); Lockwood & Co., December 21, 1826 (ante, V. 168); M'Farlanes, March 6, 1827 (ante, V. 537); Kellie, December 18, 1828 (ante, VII. 208); Johnston, January 14, 1829 (ante, VII. 234); Robertson, January 16, 1829 (ante, VII. 272); Anderson, May 27, 1830 (ante, VIII. 820); Muckarsie, June 25, 1831 (ante, IX. 804).
Respondent's Reference.—Macdonell, June 12, 1824 (ante, III. 131).
debt, and diligence against the Countess, were cancelled; to recal the inhibitions used, &c.; and to grant warrant to the keeper of the records to purge the record of these inhibitions, &c. When this summons was called, appearance was entered, and the process was borrowed up. The defences were due on 29th May, 1834, but none were lodged. Two days afterwards, Ewing's agent wrote to Clason, that defences would be lodged unless certain expenses of diligences, &c. were paid. The terms thus offered were declined; and, on 5th June, Ewing's agent again intimated, that defences should be lodged unless the expenses were paid; which was again refused. When the summons was called back from Ewing's agent for enrolment, he wrote that he had sent a draft of defences to Ewing for revisal, and had just got it returned; and that the defences would be printed, and lodged before the calling. This was not done, and decree passed “in absence, conform to the conclusions of the libel, with expenses.” Ewing's agent then borrowed up the proceedings, but no reclaiming note was lodged. A caption having been intimated for recovering the process, Ewing's agent wrote to Clason, “It will be quite unnecessary for you to extract the decree, or to incur one farthing more expense about the matter, as Mr Ewing, I have no doubt, will instantly sign the renunciation on his return from London, which is expected in about a fortnight or less. Before leaving town myself, on the 16th August, I arranged with him not to reclaim, and he promised to sign the renunciation on my sending it to him, but which I omitted to do, and by the time I returned from the Continent I found him in London, where he intended to remain about ten days.”
After the lapse of a fortnight, this letter from Ewing, dated at Bristol, was delivered to Clason:—“Mr Wotherspoon (Ewing's agent) writes me that you appear exceedingly anxious to extract the decree against me regarding the discharge to Lady Strathmore. I certainly meant to have signed it before leaving Edinburgh, but being hurried away to the Horse-Guards on the spur of the moment, on an urgent affair of my son's, Lieutenant Ewing, it was in that way omitted. You may make yourself easy, however, and rely on the discharge being executed on my return.”
On the 29th of October, after Ewing was said to have been several days returned to Edinburgh, Clason extracted the decree. Upon the decree, a charge for the expenses of the action and the extract, was given to Ewing, who presented a bill of suspension on caution or consignation, chiefly founding on the plea that the decree had passed in absence. He also produced a summons of reduction of the decree on the merits, as well as the expenses, and stated that this would be executed without delay.
The chargers answered, that, in the circumstances, Ewing was barred from suspending the charge for expenses. If he had consented to the decree being passed against him, he could not thus suspend; but consent
The Lord Ordinary “refused the bill, and found the suspender liable in expenses.” *
Ewing reclaimed.
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1 M'Donald, 13th Nov. 1832 (ante, II. 4, or p. 3, New Ed.)
“ Note.—No reduction has been actually instituted—and, though it had, the circumstances of the case, In so far as the charge for expenses is concerned, bring this suspension within the principle of the case of M'Donald, 18th November, 1822.”
The Court adhered.
Solicitors: Wotherspoon and Mack, W.S.—A. Clason, W.S.—Agents.
